Commonwealth Association of Legislative Counsel
The Frailties of Hansard Evidence Are Many: The Use of House of Assembly Debates in Nova Scotia Courts
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- Navigate this page:
- The Leading Canadian Cases: Morgentaler and Rizzo
- The “many frailties” of Hansard
- How faithful a record is it
- Who speaks for the legislature
- What is the Quality of the Speeches
- The “Model” Use of Hansard
- The use of Hansard, after Rizzo Shoes , in Nova Scotia
- The use of Hansard in the Court of Appeal
- Antigonish (County) v. Antigonish (Town)
- Hartling v. Nova Scotia (Attorney General)
- The use of Hansard in trial courts
- Some oddities from the trial courts
The Frailties of Hansard Evidence Are Many: The Use of House of Assembly Debates in Nova Scotia CourtsGraham Steele0 
Abstract
The Supreme Court of Canada has permitted the use of Hansard for the purposes of statutory interpretation, though within strict limits. A review of a decade’s worth of Nova Scotia court decisions reveals, however, that the courts rarely instruct themselves on the proper use of Hansard. As a result, they receive it too often in evidence, and use it in inappropriate ways. The author argues that the courts will lead themselves into difficulty if they are not more cognizant of Hansard’s many frailties. ____________________ IntroductionHow do Nova Scotia courts use the debates of the House of Assembly? My analysis of the caselaw on this question is supplemented by my experience as a member of the Nova Scotia House of Assembly. This mixture of doctrine and experience may offer a unique pathway to an understanding of how the courts are using—and I will argue misusing—evidence of debates in the Nova Scotia House of Assembly. It is, in fact, my experience as an elected member that led me to this topic. When I was in law school in the mid-1980s, I learned that Hansard was generally not admitted in evidence. By the late 1990s, when I left the practice of law and entered politics, I was vaguely aware that the court’s view of Hansard had evolved, but I wasn’t sure how. On some days when I spoke in the House of Assembly—particularly as a minister speaking to the principle of the bill on second reading—I wondered whether and how my words might later be used in court. After leaving politics and returning to the study of law, I delved into the recent evolution of the judicial use of Hansard, which starts with two key Supreme Court of Canada decisions: R. v. Morgentaler0 in 1993, and Re Rizzo & Rizzo Shoes0 in 1998. Morgentaler and Rizzo are the leading cases on the admissibility and use of Hansard, and as we will see, the rule laid down in them is reasonably clear: Hansard is admissible, but it should not be given much weight. Still, I had a nagging doubt—born of some experience from my practicing days—as to whether the courts were consistently applying the Morgentaler/Rizzo rule. So the heart of this paper is a systematic analysis of how Nova Scotia’s courts have been using Hansard. I identified every reported Nova Scotia decision in the period 2004–2014 in which there is a reference to Hansard, and then asked the question: is the Morgentaler/Rizzo rule being followed? I was surprised by the results. Nova Scotia’s courts are using Hansard more, and giving it more weight, than one would expect in light of the Morgentaler/Rizzo rule. This is partly the fault of the courts, who rarely instruct themselves on the use of Hansard; and it is partly the fault of counsel, who seem ready to present the court with great tracts of Hansard in the hope that something will stick. But the fundamental problem with the use of Hansard evidence can be traced back to a flaw in the Morgentaler/Rizzo rule itself. The Leading Canadian Cases: Morgentaler and RizzoMorgentalerThere are two leading Canadian cases on the judicial use of Hansard, and the first of these is Morgentaler. It is, by coincidence, a case from Nova Scotia. In early 1989, Dr. Henry Morgentaler announced his intention to open an abortion clinic in Halifax. The provincial government was opposed. First it adopted a regulation prohibiting abortions performed outside a hospital and denying medical services insurance for any abortion performed outside a hospital. The government later repealed this regulation, and introduced into the House of Assembly the Medical Services Act, which had the same effect. The bill was debated and approved by the House of Assembly, and received Royal Assent shortly afterwards. Despite the prohibition in the Medical Services Act, Morgentaler opened the clinic and, in October 1989, performed 14 abortions. He was charged with 14 counts of violating the Medical Services Act. Morgentaler acknowledged having performed the abortions, but challenged the constitutionality of the law. The case eventually made its way to the Supreme Court of Canada. The question before the court was whether the Medical Services Act was, in pith and substance, criminal law, and therefore ultra vires the provincial legislature. Justice Sopinka, writing for a unanimous bench, concluded it was. In reaching that conclusion, Sopinka J. made extensive references to Hansard and other extrinsic materials. Sopinka J. addressed the question of whether Hansard is admissible, though perhaps not in the detail that would truly impress the point on lower courts. He traced the early rejection of Hansard evidence, and the more recent relaxation of that rule: The former exclusionary rule regarding evidence of legislative history has gradually been relaxed (Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, at pp. 317-19), but until recently the courts have balked at admitting evidence of legislative debates and speeches. Such evidence was described by Dickson J. in Reference re Residential Tenancies Act, 1979, supra, at p. 721 as "inadmissible as having little evidential weight", and was excluded in Reference re Upper Churchill Water Rights Reversion Act, supra, at p. 319, and Attorney General of Canada v. Reader's Digest Association (Canada) Ltd., [1961] S.C.R. 775. The main criticism of such evidence has been that it cannot represent the "intent" of the legislature, an incorporeal body, but that is equally true of other forms of legislative history. Provided that the court remains mindful of the limited reliability and weight of Hansard evidence, it should be admitted as relevant to both the background and the purpose of legislation. (Emphasis added.)0 The last, underlined sentence is the one most commonly cited with respect to Hansard evidence. The frequent citation of that one sentence, though, has tended to erase a very important aspect of the Morgentaler rule: that Sopinka J.’s analysis was expressly limited to constitutional cases. All the precedents cited by Sopinka J. for the use of Hansard are constitutional cases. A passage from Peter Hogg’s Constitutional Law of Canada, quoted with approval by Sopinka J., also makes a clear distinction between constitutional cases and others: Until recently, there was doubt about the propriety of reference to parliamentary debates (Hansard) and other sources of the "legislative history" of the statute. The relevance of legislative history is obvious: it helps to place the statute in its context, gives some explanation of its provisions, and articulates the policy of the government that proposed it. Legislative history has usually been held inadmissible in Canada under ordinary rules of statutory interpretation. But the interpretation of a particular provision of a statute is an entirely different process from the characterization of the entire statute for purposes of judicial review. There seems to be no good reason why legislative history should not be resorted to for the latter purpose, and, despite some earlier authority to the contrary, it is now established that reports of royal commissions and law reform commissions, government policy papers and even parliamentary debates are indeed admissible. (Emphasis added.)0 There is therefore a very good argument to be made that Morgentaler is authority for the admissibility of Hansard only in constitutional cases, and perhaps only in pith-and-substance cases. Sopinka J. recognized that the Nova Scotia government was sophisticated enough to be aware that it was approaching constitutional boundaries. The court needed to get behind the actual words of a statute and ask: what is this law really about? In such a case, it is unremarkable that the court should look at the entire factual context, including what was said in the elected assembly. A great deal of extrinsic evidence was adduced in the Morgentaler case, and Hansard from the House of Assembly was only one small part of it. Sopinka J. referred (both directly and by incorporating reasons from Freeman J.A. in the Nova Scotia Court of Appeal) to
a ministerial statement by the Minister of Health; remarks by the Minister of Health in the budget debate; and second-reading speeches by the Minister of Health, the opposition health critic, and an opposition backbencher. In light of all the extrinsic evidence, Sopinka J. concluded that the Medical Services Act was, in pith and substance, criminal law. It was therefore ultra vires the province. The important question of whether Hansard is limited to constitutional cases, or whether it could be used in run-of-the-mill cases of statutory interpretation, would have to wait for another day, and that day turned out to be Rizzo. Rizzo ShoesAt the heart of Rizzo was a question of statutory interpretation. When a company went bankrupt (as Rizzo & Rizzo Shoes Ltd. had), did the Ontario Employment Standards Act0 apply so as to entitle employees to termination pay, vacation pay and severance? The key section read as follows: 40. (1) No employer shall terminate the employment of an employee who has been employed for three months or more unless the employee gives [followed by a list of notice periods]. The Ontario Court of Appeal ruled that this provision did not apply to loss of employment due to bankruptcy. The words, on their face, applied when an employer terminated employment, but not when employment was terminated by operation of law. The Supreme Court of Canada unanimously disagreed. Justice Iacobucci, for the court, laid out the already well-known principle of statutory interpretation: Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 1 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v.Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.0 Iacobucci J. also relied on s. 10 of the Ontario Interpretation Act:
Although he acknowledged that the plain meaning of the Employment Standards Act supported the Court of Appeal’s decision, Iacobucci J. believed the Court of Appeal had unduly restricted its inquiry: Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues.0 Iacobucci J.’s discussion led him to previous judicial decisions, textbooks, the legislative history of the statute—and Hansard. Although it was far from central to his interpretation of the ESA, Iacobucci J. found support for his interpretation in statements made by the Ontario Minister of Labour on two different occasions. On June 4, 1981, the Minister of Labour, Dr. Robert Elgie, had risen to make a ministerial statement, in which he outlined the details of ESA amendments he would be making later that day; and on June 16, 1981, the minister gave his second-reading speech. Finally, after having considered the Hansard evidence, Iacobucci J. makes a brief comment on its admissibility: Although the frailties of Hansard evidence are many, this Court has recognized that it can play a limited role in the interpretation of legislation. Writing for the Court in R. v. Morgentaler, [1993] 3 S.C.R. 463, at p. 484, Sopinka J. stated: . . . until recently the courts have balked at admitting evidence of legislative debates and speeches. . . . The main criticism of such evidence has been that it cannot represent the “intent” of the legislature, an incorporeal body, but that is equally true of other forms of legislative history. Provided that the court remains mindful of the limited reliability and weight of Hansard evidence, it should be admitted as relevant to both the background and the purpose of legislation.0 And that is all Iacobucci J. wrote. He did not spell out the many frailties of Hansard evidence, nor did he elaborate on the limits to its role. Most importantly, Iacobucci J. left out all the parts of the Morgentaler decision that might support a distinction, for purposes of using Hansard, between constitutional and non-constitutional cases. The significance of Rizzo is that it takes the idea laid down in Morgentaler – the idea that Hansard is admissible, though with caution—and expands it beyond the characterization of a law for constitutional purposes, to every question of statutory interpretation. The “many frailties” of HansardIn Rizzo, Justice Iacobucci noted that “the frailties of Hansard evidence are many,” but he did not enumerate them. Before we turn to an examination of the Nova Scotia cases, I think it is important to enumerate what exactly those frailties are.0 It is only with that context that we can understand just how problematic some of the judicial uses of Hansard are. How faithful a record is it?Is Hansard an accurate record of what is said in the Nova Scotia House of Assembly? Yes, but not 100% of the time. If the Hansard is important enough to use for statutory interpretation, we need to understand how it is produced. There is a recording microphone at every desk in the legislative chamber. Typically only one microphone is on at a time, because only one member can have the floor. The Speaker of the House has the ultimate authority as to who has the floor, but the routine switching of microphones is done by a technician in a hidden control room. The system records the member’s words. The recording is sent to the Hansard Office, where the recording is transcribed, edited, and published on-line. Typically the process between speech and publication takes about 24 hours, but it can, depending on circumstances, take a longer or shorter time. When I was first elected, a hard copy of Hansard would be circulated to the members, and stored at their desks. But this intensive use of paper fell out of favour, especially because the members rarely looked at it. Today, the on-line version is the only version anyone uses. The enormous advantage offered by on-line Hansard is that it is searchable. Before the on-line version was available, searching Hansard was tedious and time-consuming. Unlike some other Canadian assemblies—for example, the House of Commons—the Nova Scotia legislature does not circulate Hansard drafts (“the blues”) to members, and there is no formal procedure for correcting errors. In my experience, very few MLAs review Hansard for accuracy. Politics moves quickly. By the next day, members have mentally moved on to other business. Having read a significant amount of Hansard over the years, I believe that the vast majority of Hansard does faithfully capture what was said. But very occasionally, I would glance back at what I was recorded as having said, and I was sometimes dismayed at how the transcript could vary from what I knew I had actually said. Beyond the question of pure transcription errors, there is the question of whether Hansard captures the sense of what is being said. Like any transcript, including a discovery transcript or a trial transcript, the words on the page may be literally accurate yet miss what the speaker was conveying. A transcript captures poorly, if it captures at all, the speaker’s humour, sarcasm, emphasis, tone, body language, and gestures, as well as reactions from the audience and the speaker’s reaction to those reactions. These things might be perfectly clear to a live audience, and they are essential to the speaker’s meaning; but they may be lost in a transcript. Even something as simple as punctuation and paragraphing can change the meaning of a sentence. The Hansard staff have no way of knowing where the speaker would put a colon, a dash, or a paragraph break. Unless the speaker is explicit, it may not be evident that the speaker is quoting from something or someone else, or where the quotation begins and ends. The Hansard recordings are preserved, although I am not certain for how long. House of Assembly proceedings are also televised, and the broadcast recording is, as far as I know, preserved forever. I can find no evidence, however, that the courts have resorted to listening to or watching the tapes in order to assure itself that Hansard is accurate. In short, when Hansard is used in judicial proceedings, it is taken at face value. That is likely a matter of judicial economy, as much as anything else. But counsel and the courts need to be aware of the most basic frailty of Hansard evidence: the transcript may not accurately capture what was said, nor the context that leant meaning to the speaker’s words. Who speaks for the legislature?The most fundamental frailty of Hansard evidence is the one alluded to by Sopinka J. in Morgentaler, quoted above: “The main criticism of such evidence has been that it cannot represent the ‘intent’ of the legislature, an incorporeal body.” The House of Assembly is a multi-member body. It is a concept, not a person. It has no thoughts or feelings. It cannot have an intention, any more than a rock can have an intention; and neither can a statute. Nevertheless, the search for “legislative intent” or “the legislator’s intent” is at the heart of statutory interpretation. Recall Driedger’s modern rule of statutory interpretation, cited approvingly in Rizzo and in hundreds, if not thousands, of other judicial decisions: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. (Emphasis added.) Recall also the Ontario Interpretation Act, cited by Iacobucci J. in Rizzo: 10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit. (Emphasis added.) Every province, and the federal jurisdiction in Canada, has an Interpretation Act with variations on these words. Section 9(5) of Nova Scotia’s Interpretation Act0 reads thus (emphasis added): Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters (a) the occasion and necessity for the enactment; (b) the circumstances existing at the time it was passed; (c) the mischief to be remedied; (d) the object to be attained; (e) the former law, including other enactments upon the same or similar subjects; (f) the consequences of a particular interpretation; and (g) the history of legislation on the subject. We can see in all of these guidelines a direction to the courts to hunt for the legislature’s “intent” or “objects.” The concept of “the intention of Parliament” makes the most sense when it is taken as a metaphor. The courts imagine the elected assembly as a single person, who is presumed to be knowledgeable about the law, knowledgeable about the subject-matter of the bill, logical, concise, and reasonable. That metaphorical legislator is good at their job and knows what they’re doing: “the legislature is presumed to have created a coherent, consistent and harmonious statutory scheme.”0 This is the person on the Clapham omnibus, re-imagined as a Member of Parliament. The metaphor of “the legislator”, imagined as a single, thoughtful individual with a coherent intention, is a useful mental tool to aid in the task of statutory interpretation. All of the problems associated with the use of Hansard evidence arise when the courts take the metaphor too far; that is to say, when they take it literally, and start searching for “legislative intent” in the words of real flesh-and-blood individuals. After all, who speaks for Parliament? Certainly not the premier/prime minister, nor any minister of the Crown. They may be the authorized spokesperson for the government of the day, but they do not speak on behalf of the assembly. The Speaker is the authorized spokesperson of Parliament, but only in very limited circumstances, and certainly not for the purpose of statutory interpretation. Even when Parliament is unanimous, it “speaks” through the bills or motions it adopts. Besides, it is entirely possible that different members will have different understandings of what a bill does. Reasonable people can see different meanings in the same words. They may all vote yes, and yet disagree profoundly on how the bill should apply to a set of facts. So who speaks for Parliament? Nobody. That is why the courts will always struggle with their use of Hansard evidence. In most cases, they slide over this conceptual conundrum with two giant leaps of logic: they take the intention of the minister and call it the intention of the government; and then they take the intention of the government and call it the intention of Parliament. But they are not the same thing. They are not the same thing at all.
Speeches in an elected assembly are political speeches, made by politicians, in a political forum. One does not have to sit in the assembly to know that politicians do not have much of a reputation for speaking “the truth, the whole truth, and nothing but the truth.” Surely the courts are aware of politicians’ reputation, and take it into account, but I could find no instance of a judge saying it out loud. Perhaps it is deemed impolite. I have sat in an assembly, and I can confirm that the quality of most speeches there is low. Party discipline means that the votes are pre-determined, and nobody is open to persuasion. There is no meaningful debate, in the sense of an informed exchange of views. There is therefore little incentive for members to do much research or thinking about the substance of a bill. Sometimes a member will speak to a bill without having read it. The purpose of the speeches is usually to characterize the bill politically, as being worthy either of credit or blame. If all of this sounds unduly harsh, all I can say is: that was my experience from the 12 years in the House. Of course there are exceptions. Occasionally a speech in the House is brilliant and insightful. But I am speaking of the general rule, and as a general rule, the quality of speeches is low. Should an exception be made for speeches by the sponsoring minister?0 Of all the members in the assembly, the minister is in the best position to speak knowledgeably to the substance of a bill. The minister’s speech on second reading is typically the fullest statement in the House about why the minister introduced the bill, and any noteworthy decisions on policy or drafting. The minister is the spokesperson for the government on that bill. By implication, the minister’s intention is shared by all members on the government benches who will vote for the bill. Although the minister’s speeches are most likely to be substantive, we still need to be cautious. First, the minister is only one member of the assembly, and the minister’s intention may not be shared by others, even on their own side of the House. Perhaps others see something different in the bill. More likely, other members have no particular intent at all. Their true intention, in the narrowest sense, is to vote with their party. Second, the minister’s grasp of the bill may itself be shaky. We do not have government by experts, and ministers are typically not experts in the subject-matter of their department. We can have a teacher as health minister, a lawyer as finance minister, and a fisherman as environment minister. Even if a minister understands the broad outline of a bill, and is able to give broad political direction, the details are typically left to civil servants and legislative counsel. The minister’s second-reading speech is almost always written by staff, and the minister merely reads it. The fact is that political speech is a different beast altogether than sworn testimony in a courtroom. MPs can have all kinds of motivations for saying what they say. Maybe a deal has been done: you support my legislation and I’ll support yours. Maybe the government is deliberately using ambiguity to win support for legislation that might not otherwise pass. Maybe the sponsoring minister doesn’t really believe that the bill does what he says, but for political reasons he has to claim that it does. Maybe the minister just doesn’t understand the file. Maybe the minister’s speech has been written by someone else. Maybe the minister’s instructions from his boss are “read the speech and don’t think too much.” These and a thousand other scenarios make Hansard a slippery foundation for any judicial decision.
As we will see, it is difficult to know just how much other judges know about the workings of Parliament or the House of Assembly. Only a handful of Nova Scotia’s judges have been elected members. Here’s the rub: Hansard is itself a text, and like any text it has to be interpreted. To interpret Hansard properly requires consideration of its whole context. And how much do judges really understand about the context of an elected assembly? When interpreting Hansard, it is surely relevant to consider at least these questions: How much does the speaker actually know about the subject? Who wrote the speech? What’s going on around the speaker? What is the political dynamic in the legislature? Is there a majority or minority? How close is the next election, and how are electoral considerations weighing on the speeches in parliament? How publicly controversial is this bill? What stage of the proceedings is the bill at? Are there procedural considerations at play? These questions are all relevant to an understanding of Hansard, but answering them explicitly opens a Pandora’s Box, so the courts almost never touch them. In Rizzo itself, Iacobucci J. made a very restrained use of Hansard. There are three noteworthy elements:
only the sponsoring minister is cited; the quotations are brief; the quotations support an interpretation reached by other means. I will refer to a use of Hansard displaying these three elements as a “model use.” The use of Hansard, after Rizzo Shoes, in Nova ScotiaI turn now to an examination of how Hansard evidence is being used in Nova Scotia’s courts. I limited my search to the ten-year period of 2004–2014. I found, in that period, 31 reported decisions in which Hansard is cited.0 The use of Hansard in the Court of AppealModel usesIn the study period, there were nine cases in which the Court of Appeal referred to Hansard. One would hope that Nova Scotia’s highest court would set an example for other courts. Unfortunately, the Court of Appeal’s use of Hansard is inconsistent. In only three of these nine case did the Court of Appeal explicitly instruct itself on the law regarding the admissibility and weight of Hansard.0 Perhaps this is the root of some of the difficulties. If one does not remind oneself of the Morgentaler/Rizzo rule—regarding the admissibility but limited weight of Hansard evidence—there may be a tendency to admit it too readily and weight it too heavily. Only two of the nine Court of Appeal decisions demonstrate what I would call a “model use” of Hansard: Nova Scotia (Attorney General) v. Brill, 2010 NSCA 69, per Fichaud J.A. for a unanimous court, concerning the Marketable Titles Act and the Land Registration Act. R. v. Hutchinson, 2010 NSCA 3, per Beveridge J.A., dissenting, concerning the consent provisions of the Criminal Code. The majority does not refer to Hansard. There are also fleeting references to Hansard in three other appeal decisions: Hayward v. Hayward, 2011 NSCA 118, in which Justice Oland summarizes the trial decision. The trial judge had looked through Hansard and found no evidence to support an intention of retrospectivity in a particular provision of the Wills Act. Justice Oland does not herself use Hansard, nor does she comment on the trial judge’s use of it. Allstate Insurance Company of Canada v. Nova Scotia (Insurance Review Board), 2006 NSCA 70, in which Justice Oland (for the majority) makes a fleeting reference to Hansard—but only to a date, not to a specific speech—to establish the purpose of amendments to the Insurance Act.0 R. v. Allen, 2005 NSCA 118, in which Justice Saunders (for a unanimous court) makes a similarly fleeting reference to Hansard to establish the purpose of the Fisheries Organizations Support Act.0 I turn now from these model uses (two cases) and minor uses (three cases), to the other four Court of Appeal decisions—decisions where the use of Hansard goes off on tangents that are interesting, though at times problematic. CarveryIn R. v. Carvery,0 Justice Beveridge, writing for a unanimous court, considered whether 2009 amendments to the Criminal Code, known as the Truth in Sentencing Act, justify a quasi-automatic 1.5:1 credit for pre-sentence custody. He summed up the guidance on statutory interpretation this way: [45] I do not think it controversial to say that the various directions involved in the so-called ‘modern approach’ are closely related and interdependent (Chieu v.Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R.84, at para. 28). The ultimate goal is to determine the intent of Parliament.0 To find “the intent of Parliament”, Justice Beveridge turned to the grammatical and ordinary use of the words; the scheme of the Act; and the object of the legislation. It is in this last category that we come to legislative history, and Hansard. “Legislative history of an enactment consists of everything that relates to the conception, preparation and passage of the legislation,” wrote Justice Beveridge.0 This is, on its face, remarkably broad. We have gone well beyond a minister’s second-reading speech on the bill. Everything done or said, at any stage of the proceedings, is potentially relevant. For some legislative processes, the passage of a bill can involve days of debate, weeks of study, and dozens or hundreds of witnesses. Is this now all potentially relevant, and admissible in court on the question of interpretation? Ironically, such a broadly-stated principle was unnecessary for Justice Beveridge’s decision. The Hansard material he actually used was quite limited. His main use of Hansard was by way of quotation from another case. The leading case up to that point, R. v. Johnson,0 quoted from committee testimony from the Justice Minister and one of the minister’s senior aides. Here is the full passage:
The most remarkable thing about this passage (which is quoted approvingly by Justice Beveridge)0 is that the judge gave weight to “statements made by a minister and his or her senior aides” (emphasis added). We have seen how Parliament’s intent is typically reduced to the government’s intent, and the government’s intent is reduced to the minister’s intent. Now we see the minister’s intent being expressed by his unelected aide. Next, Justice Beveridge noted the Crown’s reference to evidence of the Justice Minister before a committee of the House of Commons, in which the minister further explained why the bill was introduced. He concluded, however, that the minister’s remarks “reveal what is already easily discernible,” namely the government’s desire to abolish 2:1 credit, and to address the public perception that sentences were too lenient because of credit for pre-trial detention. The Supreme Court of Canada affirmed the Court of Appeal’s decision in Carvery and largely adopted Justice Beveridge’s reasoning.0 It did not, however, refer to the passage from Justice Green in Johnson, but it used the Minister of Justice’s remarks to the House of Commons committee as evidence of legislative intent. Like the Court of Appeal, the Supreme Court of Canada did not find the extrinsic evidence (including Hansard) helpful in determining legislative intent of when the “circumstances” justified a credit of 1.5:1. The Supreme Court of Canada’s decision in R. v. Summers (in which the substantive reasons were also applied in R. v. Carvery) is, in the end, a classic case of the proper use of Hansard. The court instructed itself on how Hansard is to be used: [51] The intention of Parliament can be determined with reference to the legislative history, including Hansard evidence and committee debates, although the court should be mindful of the limited reliability and weight of such evidence (R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 593-94 and 609).0 The court then went on to use a single quotation from the sponsoring minister, to support an interpretation that had been reached in other ways. The only departure from the classic model is that the minister’s remarks are from a Commons committee, rather than from a speech given in the House of Commons itself.
Keizer v. SlauenwhiteThe issue in Keizer v. Slauenwhite0 was whether the Province was subrogated to a claim for nursing-home care resulting from a motor-vehicle accident. The court in Keizer was not unanimous. Hamilton J.A. wrote for the majority, and Oland J.A. wrote a dissent. Both referred to Hansard, though more for what it did not say rather than for what it did. The narrow question of interpretation concerned how 1992 amendments to the Act should be interpreted in light of 2002 amendments. Both Hamilton and Oland JJ.A. note that there is nothing useful in the 2002 debates to assist in locating legislative intent. The most interesting point about the use of Hansard in Keizer is that the Hansard evidence was introduced at the appeal stage. It was not in evidence at trial. Hamilton J.A. wrote: While no Hansard excerpts relating to the legislation were in evidence before the judge, excerpts relating to the 1992 amendments to s. 18 were before this Court. I agree with the parties that we are entitled to take these into account in deciding this appeal.0 Hamilton J.A. did not consider the rules around admissibility and weight, probably because neither party had put them in dispute. But Hansard evidence is still evidence, and needless to say it is highly unusual for an appeal court to receive evidence that was not before the trial judge. The appeal court’s willingness to entertain new Hansard evidence illustrates the court’s decidedly lax approach to Hansard. It was treated almost like a legal argument, or a copy of a statute attached to an appeal book, rather than what it really is—evidence with many frailties. In the end, the Keizer majority affirmed the trial judge’s interpretation of the Insurance Act. Hansard, which is paraphrased rather than quoted, supported the trial judge’s interpretation. Hamilton J.A. stressed that legislative intent can be gleaned without extrinsic evidence, by looking at the statute itself and without Hansard.0 Antigonish (County) v. Antigonish (Town)The issue in Antigonish0 was whether the Utility and Review Board had the jurisdiction to hear an amalgamation application filed by the county. Oland J.A., for a unanimous court, was presented by the town with an appeal book of Hansard excerpts; but in the end, she found them unhelpful. Of particular note is the fact that Oland J.A. drew an explicit distinction between the remarks of a minister, and the remarks of the opposition: [34] Much of the material sought to be introduced did not consist of statements or accompanying text supplied by the minister introducing or defending the Act in the Legislature, which can be helpful in establishing legislative intent. Rather, they were statements or comments made by members of the opposition who criticized the lack of consultation prior to the formation of the Cape Breton and Halifax Regional Municipalities. The minister did not say anything which would even suggest that the Act was intended as a response to those criticisms. Furthermore, it is significant that none of the remarks directly address the question of whether or not s. 372 which deals with the creation of regional municipalities, was intended to displace or to be paramount over s. 358 which concerns amalgamations and annexations. [35] In my view, the material the Town sought to be introduced does not satisfy the threshold tests of relevance and reliability. Accordingly the volume of Hansard extracts will not be considered in the search for legislative intent.0 Oland J.A. reached the right results, though perhaps without quite correctly instructing herself. As we know from Morgentaler, Hansard evidence is admissible. It is always to be given limited weight because of its inherent unreliability. The question of relevance is a different issue entirely. Whether it comes from Hansard or not, any evidence that is irrelevant is to be disregarded. In the end, the decision in Antigonish is notable mainly for its explicit distinction between a second-reading statement by the sponsoring minister, and “statements or comments made by members of the opposition.” Hartling v. Nova Scotia (Attorney General)The most problematic use of Hansard by Nova Scotia’s Court of Appeal is in Hartling v. Nova Scotia (Attorney General).0 It is problematic because—in contrast to the rejection of opposition remarks by Oland J.A. in Antigonish—MacDonald C.J.N.S. quoted from two members of the opposition as a means of establishing legislative intent. At issue in Hartling was the legality of limits imposed on general damages for a “minor injury” suffered in motor vehicle collisions. Three plaintiffs challenged the constitutionality of the law, and they also challenged whether the “minor injury” regulations were authorized by the legislation. It was on that the latter question that MacDonald C.J.N.S., writing for a unanimous court, turned to Hansard. In an unusual move, MacDonald C.J.N.S. noted the legislative context:
rapid increases in auto insurance premiums were an issue in the 2003 provincial election; the election produced a minority Conservative government; and the first piece of legislation introduced after the election was Bill 1, the Automobile Insurance Reform Act. Part of the core of Bill 1 was a limitation on compensation for a “minor injury.” Between first reading and Royal Assent, a definition of “minor injury” was moved from draft regulations into the bill itself, and modified. In order to decide whether the remaining regulations were ultra vires the statute, MacDonald C.J.N.S. had to determine the scope of the statutory definition of “minor injury.” The Chief Justice used a variety of interpretive tools, including three quotations from Hansard.0 The first quotation was from the sponsoring minister’s second-reading speech. This comfortably fits within the “model use” of Hansard. But the next two quotations were from the opposition benches: Liberal leader Danny Graham on second reading, and Liberal MLA Michel Samson on third reading. This last quotation is the most critical, because it is the only one made after Bill 1 was amended. How can an opposition member speak to the intention of a bill that is drafted and introduced by someone else? At the time, the Liberals held only 12 seats in a 52 member assembly. Even if the statements made by Liberal MLAs can be taken as expressing the intent of all 12 Liberals, how can they be taken as expressing the intent of the legislature? There are plausible answers to those questions, but MacDonald C.J.N.S. did not address them explicitly. One must read between the lines. The Chief Justice mentioned twice that there was a minority government, but he did not spell out why that was significant, and the casual reader may miss the point. Because I was there, I know why it is significant. In order for Bill 1 to pass, the Progressive Conservative government had to attract the support of one of the two opposition parties. The New Democratic Party (my party) rejected Bill 1 outright. That left only the Liberals as a potential partner, but the Liberals were not happy with the original definition of “minor injury.” They believed it to be too broad. Negotiations ensued, and Bill 1 was subsequently amended. The Liberals voted for the bill as amended. Thus MLA Samson’s third-reading speech was significant because it expressed the Liberals’ view of what the amendments were intended to achieve. The difficulty is that MLA Samson’s speech—indeed, any speech recorded in Hansard—is a political speech, not sworn evidence, and a political speech is open to multiple interpretations. There are other, equally plausible readings of events. For example, here is another version of events, which I have made up but which is in keeping with all of the known facts: The issue of auto insurance premiums was a highly-politicized issue leading up to, during, and after the 2003 provincial election. During the 2003 election, the Liberals promised a 15% reduction in auto insurance premiums. The Conservatives promised a 20% reduction. The NDP promised public auto insurance, and claimed it would lead to a reduction of 25%-30%. The Liberals did not do well in the election. They were reduced to third-party status. They were therefore keen to re-establish their relevance, and were desperate to find something for which they could take credit and which would contrast them with the NDP. The Liberal-Conservative negotiations over Bill 1 were held behind closed doors, so there is no public record of who said what, or what options or information were on the table. The two parties emerged with a set of amendments. The Conservatives, who had promised a 20% premium reduction, did not want to make any concessions that would result in a lesser reduction. They had an interest in pretending they had made concessions to the Liberals, while believing they had not. The Liberals, who had promised a 15% premium reduction, had an interest in claiming they had won concessions, whether they had or not. I want to emphasize that I am not claiming this story is true, although it could be true. My point is only that this story is at least as plausible as the story accepted by Chief Justice MacDonald. Hartling illustrates the slippery territory into which the courts enter when they go beyond the “model use” of Hansard—typified by Rizzo—and start re-constructing events based on Hansard speeches. Hansard is being used to give context to a statute, but Hansard is itself a text that must be interpreted in its whole context. The use of Hansard in trial courtsI turn now from the Court of Appeal to Nova Scotia’s trial courts. Given the inconsistent use of Hansard in the Court of Appeal, it is not surprising that use of Hansard at trial is similarly inconsistent. In the 2004–2014 study period, I found 22 Hansard references in trial court decisions. In only three of these decisions is there express consideration of the admissibility of Hansard.0 This statistic is even worse than the statistic in the Court of Appeal, where only three of nine decisions expressly considered the admissibility of Hansard.0 Without specific instruction, it is more likely that Hansard will be used inappropriately. Only three of the trial decisions display the “model use” use of Hansard typified by Rizzo: a brief quotation from the sponsoring minister, usually on second reading, to support a conclusion that has already been reached by other means.0 Most of the remaining trial-court references to Hansard are minor. Thus we have a vague reference to Hansard without a specific quotation,0 a reference to the unavailability of Hansard for the year in question,0 and incorporation of Hansard by quotation from another case.0 There are also instances of a judge considering Hansard but finding nothing relevant in it,0 or giving it little weight.0
Quotation of MLAs other than ministersThe Hansard evidence most likely to be used by the courts is from the sponsoring minister’s speech on second reading. This is the “model use” of Hansard, typified by Rizzo. We have already seen some uncertainty in the Nova Scotia Court of Appeal about the use of opposition speeches, ranging from their rejection by Oland J.A. in Antigonish to their acceptance by MacDonald C.J.N.S. in Hartling. In Nova Scotia’s trial courts, non-ministers have been quoted several times. In Brocke Estate v. Crowell,0 the issue was what discount rate to use in the calculation of damages. Justice Muise cites two passages from Hansard, both from members of the third-party Liberals.0 In both cases, the opposition members are purporting to give an account of what the government intended or what representatives of the government said. No government member is quoted. In any other context, such evidence would be hearsay. We can see, then, the dangerous road on which the court is travelling. We have a double weakness: Hansard evidence, which should be given limited weight, is used to provide hearsay evidence, which itself should be given limited weight. An opposition member is also quoted in French v. Nova Scotia (Attorney General),0 but this usage is less problematic than Brocke Estate because the sponsoring minister is also quoted, and the two quotations are to the same effect. A real oddity occurs in TD Financing Services v. McInnis.0 Counsel submitted to Justice LeBlanc a Hansard transcript of remarks made by MLA Arthur Donahoe. On May 21, 1980, MLA Donahoe spoke on second reading of the Small Claims Court Act, and raised a concern that was later addressed in an amendment. The oddity is not what MLA Donahoe said, but the fact that he was, at the time, a government backbencher. These days, it is almost inconceivable that a government backbencher would rise in the House to raise questions about the contents of a government bill. It is hard to know what weight to give to a government backbencher’s remarks. It seems clear that a backbencher is not speaking for “the government”, much less for the House. So why quote a backbencher at all? In the end, LeBlanc J. skirts the question by finding that the Donahoe quotation offers no assistance.
Quotation of a WitnessThere was a very unorthodox use of Hansard in Cayer v. South West Shore Development Authority.0 The Hansard evidence of a non-MLA, given at a committee meeting, was used as proof of its contents. The issue in Cayer was how to characterize the South West Shore Development Authority (known by its acronym SWSDA) for purposes of access-to-information rules in the Municipal Government Act. Justice Hood cited a Hansard passage from the appearance of SWSDA’s CEO, Frank Anderson, before a House committee. Anderson described SWSDA’s legal form, and Justice Hood used this passage as proof of its contents. Although the reference is minor, and the information could have been obtained in other ways, the dangers should be obvious. Testimony by witnesses at House committees is rarely sworn. In my entire experience on House committees, I remember seeing a witness being sworn only twice, both times at the Public Accounts Committee. In both cases it was done for political effect—once at the request of the opposition, and once at the request of the witness—not because of any legal requirement. Moreover, the proceedings do not have a legal character. Their purposes are different. Members may question witnesses, but the questioning is typically a far cry from a proper cross-examination. One never knows if one is getting all the information, or the best information. More significantly, evidence given at a legislative proceeding is, in principle, not receivable in a court proceeding. To do so is a violation of parliamentary privilege. Justice Hood should not have received the Hansard evidence, and should not have used it in the way that she did. The Oddest Case of AllThe oddest approach of all to “legislative intent” occurred in Children’s and Family Services of Kings County v. MJB,0 a child protection case heard in the Family Court by Judge Robert Levy. The decision has two parts. In the first, Justice Levy goes over the facts and makes a disposition. But then there is a lengthy, second part headed “Obiter Dicta”, and which begins “If a judge, on the brink of retirement, cannot seek a little indulgence for ever so respectfully tilting at the odd windmill, then it is a hard world indeed.” We have been forewarned: we are entering a strange judicial world. And in that strange judicial world—to cut a very long story short—Justice Levy states that there was apparently no legislative debate on the statutory provision that is the subject of his “Obiter Dicta”, and so, to help discern legislative intent, he turns to a government news release. He quotes the Minister of Community Services, David Morse, in general support of his thesis, which is that adoption should not automatically foreclose a right of visitation on the part of the birth parents. The Morgentaler/Rizzo rule is that Hansard evidence is admissible, but should not be given much weight because of Hansard’s many frailties. But if Hansard is frail, what can we say about a government news release? These are the dangerous roads on which judges travel once they start the hunt for “legislative intent.” The final oddity of the MJB case is that Judge Levy is, among all the judges on all the courts in Nova Scotia, one of the very few who has previously sat in the Nova Scotia House of Assembly. If anyone should know better than to quote a government news release as evidence of the intent of the legislature, it’s Judge Levy. ConclusionThe use of Hansard evidence by the courts is inherently problematic, because it is part of the search for “legislative intent”, and “legislative intent” is inherently problematic because a multi-member, incorporeal body does not have any intention at all. “Legislative intent” is a useful metaphor, but the metaphor frequently gets pushed too far by the courts. They take the metaphor too literally, and start searching for the words of actual, flesh-and-blood members of the legislature. That is the only reason for them to look to Hansard at all. But no individual speaks on behalf of the legislature, and so the use of Hansard, which consists entirely of the speeches of individuals, will always fall short. The Supreme Court of Canada seems aware of the conceptual soup into which the courts will fall if Hansard is used too liberally. Thus the leading Canadian cases on the point, Morgentaler and Rizzo, urge caution: Hansard evidence is admissible, but its weight should be limited. My review of ten years’ worth of judicial decisions in Nova Scotia suggests that the message of limited weight for Hansard evidence is not getting through. There is cause for concern in the low number of cases in which the court instructs itself on the Morgentaler/Rizzo rule: 3 out of 9 cases in the Court of Appeal, and 3 out of 22 in the trial courts. When the court does not instruct itself on Hansard’s limited weight, there is a danger that Hansard will be misused and over-used. There are also decidedly mixed signals from the Court of Appeal, running counter to the Morgentaler/Rizzo caution. Justice Beveridge, in Carvery,0 wrote that “legislative history of an enactment consists of everything that relates to the conception, preparation and passage of the legislation.” This seems like an open invitation to counsel to troll through (among other things) all of Hansard. Then there was the Court of Appeal’s willingness in Keizer0 to accept Hansard evidence that was not before the trial judge. Hansard evidence is thus treated as if it is not evidence at all, but something like an argument or a judicial precedent, to be included in the factum or appeal book. Again, this seems like an open invitation to counsel to never stop trolling through Hansard, even on appeal. These subtle encouragements of Hansard evidence raise a very practical concern: As is evident from the Antigonish decision0 and other cases, counsel can go to considerable effort and expense to track down all relevant Hansard debates. Sometimes that evidence will be rejected by the court as irrelevant or unreliable. But Hansard is accepted often enough that counsel may say to themselves “Why not?” or “What if we miss something?” One of the essential points that I have been trying to make is that Hansard is itself a text. Like a statute, a Hansard passage can be properly understood only in its entire context. I am concerned that counsel and judges know little about that context, such as how the legislature works, or how Hansard is put together. In all the decisions I reviewed, I could find only one—Chief Justice MacDonald’s reasons in Hartling0—in which the legislative and political context of a bill is even mentioned. Even then, the context offered is thin, and alternative readings are possible. In the end, the Morgentaler/Rizzo rule is clear enough: Hansard is admissible, though with limited weight. The “model use” of Hansard, which gives practical effect to the Morgentaler/Rizzo rule, is also clear enough: the best use of Hansard is a brief quotation from the sponsoring minister’s second-reading speech, supporting an interpretation reached by other means. My review of 10 years’ worth of judicial uses of Hansard suggest that Nova Scotia’s courts too often stray beyond the Morgentaler/Rizzo boundaries. They do so at their peril. ________________________________________ |